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brbrBill Would Require Court to Weigh Public Interest in Unfettered Newsgathering against Needs of Law EnforcementbrbrSenators: New DOJ Guidelines Are Promising Start, but They Must Be the Law of the Landbrbr

WASHINGTON, DC - Today, U.S. Senators Charles E. Schumer, Lindsey Graham and a bipartisan group of Senators announced their support for an updated medial shield bill that would codify into law and expand upon the recentlyannounced Department of Justice media guidelines. In addition to supporting the original legislation that offers legal protections to journalists engaged in newsgathering activities, the senators said that they would seek to prevent future administrations from rolling back the DOJ guidelines incorporating some of them in the legislation.


The senators noted that while the DOJ guidelines are a good start, future administrations could simply undo the new guidelines if they so choose. The senators today said they would push to codify into law those portions of the guidelines that go beyond the original media shield legislation, by amending the legislation as it moves through committee and onto the floor. Specifically, the senators will push to limit the number of times that the DOJ can ask a court to extend, by 45 day increments, its obligation to notify a member of the press that the Department of Justice has sought that person's records. The new legislation will ensure that only one extension can be granted, thus requiring the DOJ to notify outlets within 90 days.


Additionally, the DOJ has proposed having its own guidelines explicitly apply not just to records that are sought from thirdparty communication providers, but from other holders of business records (such as credit card companies) as well.  The Judiciary Committee will markup the legislation in July, and the senators intend to clarify that the bill applies in those circumstances as well.  


The bill sets up a legal process for approving the subpoenas that would guarantee consideration of the public's interest in protecting the freedom of the press. Prosecutors would have to convince a judge that the information at issue would "prevent or mitigate an act of terrorism or harm to national security."


Schumer and Graham were joined by Senators Richard Blumenthal, Roy Blunt, Johnny Isakson, Amy Klobuchar, and Jon Tester.


"The DOJ guidelines were a promising start, but this bill ensures that they can't be changed on a whim, and goes beyond the guidelines to ensure that we balance our national security needs against the public's right to the free flow of information," said Schumer. "These changes make the bill stronger and should provide added momentum to get it passed."


"A free press remains essential to our democracy," said Graham.  "The media shield law tries to bring balance between those who report the news all the while protecting our national security.  I believe the legislation, which will continue to be improved as the process moves forward, will ultimately strike the appropriate balance of protecting journalists and protecting our national security." 


"A free press is absolutely essential to a free society, and a free press can only exist if policymakers are committed to keeping it free," Senator Blumenthal said. "This legislation recognizes the unique value and status of the media by allowing law enforcement to do its job, while still ensuring that the press will be brought into an investigation only as a last resort and only in cases where such action is justified."


"I supported similar bills in the House in 2007 and 2009, and I think this bipartisan bill is an improvement on that legislation. I'm proud to be part of this effort, and I will continue my commitment to protecting Americans' First Amendment rights," Senator Blunt said.


"I am both a strong defender of the First Amendment as well as strongly committed to ensuring the safety and security of our country," said Isakson.  "I look forward to working with my colleagues on this media shield bill to strike a fair balance that protects journalists and freedom of the press while also preventing the disclosure of information that could compromise our national security."


"As the daughter of a newspaperman, I have always believed in the freedom of the press," Klobuchar said. "While the Department of Justice's guidelines are a good start to improving protections for the media, we need to make sure that these guidelines can't be reversed. This legislation will help ensure the right to a free press without hindering law enforcement's ability to protect national security and public safety."


"Increasing protections for our First Amendment and holding officials more accountable will keep government from crossing the line and stepping on our Constitutional rights," Tester said.  "This nation was founded on checks and balances and smarter oversight will make sure we live up to the expectations of our Founders and the American people."


A summary of the original bill appears below.


Summary of Free Flow of Information Act of 2013


·         Protects journalists and their employers from having to reveal information, including source identity, that a reporter obtains under a promise of confidentiality and in the course of carrying out newsgathering functions.


·         Establishes a legal framework for determining the limited circumstances under which such protected information can be subject to compelled disclosure in court.


·         Provides no  ABSOLUTE privilege for journalists. In every case, a party (usually the Government) will have to argue to a court its need for the information at issue.


·         Requires, in most cases, a court to apply a balancing test before compelling disclosure (public interest in disclosure versus public interest in newsgathering).


·         Delineates exceptions when the journalist has  no privilegeagainst the disclosure of information:


1.      In  classified leak cases: when information would prevent or mitigate an act of terrorism or harm to national security.


2.      In  regular confidential information cases (where a classified leak isn't at issue): when information would prevent or mitigate,  oridentify a perpetrator of, an act of terrorism or harm to national security; and


3.      In  nonnational security cases:

·         when the information would prevent or mitigate death, kidnapping, and bodily harm (Section 4); or

·         when information was obtained by the journalist through observation or perpetration of a criminal act (Section 3), OTHER than an act of leaking.